In a recent decision, a unanimous Ontario Court of Appeal
reaffirms that when it comes to tort law, "Sentiment is not
principle":1 the victim of a crime can and
will be found liable for injuries suffered by a thief if those
injuries were reasonably foreseeable in the circumstances.

J.J. v C.C.2 involves a minor, J.J.,
who suffered a catastrophic brain injury after his friend C.C.
crashed the car they had stolen from Rankin's Garage &
Sales for a joyride after a night of drinking.

Trial judge instructs jury that duty of care owed in the
circumstances

The night of the incident, J.J. (15 years) and C.C. (16 years),
and a third friend, drank several beers each, some of which had
been provided by C.C.'s mother, D.C. They later drank a bottle
of vodka and shared a marijuana cigarette. C.C. testified at trial
that the boys then walked around town intending to steal things
from cars. They ended up at Rankin's and entered the property,
which was not secured. The boys then found a Toyota Camry that had
keys in the ashtray. Even though he had never driven a car and did
not have a license, C.C. decided to steal it. Soon after, C.C.
crashed the car, causing J.J.'s injuries.

J.J. sued his friend C.C., C.C.'s mother D.C., and
Rankin's in negligence. He conceded, through his litigation
guardians, that he himself had also been negligent.

The trial was heard before a jury, and the trial judge
instructed the jurors that Rankin's owed a duty of care
"because people who are entrusted with the possession of motor
vehicles must assure themselves that the youth in their community
are not able to take possession of such dangerous
objects."3 The jury found that all parties
involved had been negligent and apportioned liability as follows:
Rankin's 37%, D.C. 30%, C.C. 23%, and J.J. 10%.4

Rankin appealed the decision, arguing in part that the trial
judge erred in concluding that Rankin's owed a duty of care to
J.J.

Court of Appeal confirms existence of duty of care

The Court of Appeal confirmed Rankin's did indeed owe a duty
of care to J.J., though it did not agree with the trial judge that
such a duty had already been recognized in the case law. The court
therefore proceeded with a full Anns/Cooper analysis as to
whether a duty of care did exist in this particular
circumstance.

The court began its analysis by conceding it is relatively rare
to find that a duty of care is owed to a third party in cases
relating to vehicle theft, mostly because the injury to the third
party was not a reasonably foreseeable consequence of the
theft.5

Foreseeability

With respect to foreseeability, the court reiterated that
absolute foreseeability is not required and this particular case
deals with minors, "young people who are relatively immature
and cannot be expected to exercise the judgment an adult would,
especially if, as in this case, alcohol and drugs are
involved."6 The court found it was reasonably
foreseeable that minors might steal a car from Rankin's because
(i) there was a practice at Rankin's of leaving cars unlocked
with the keys inside; (ii) there was a history of vehicle theft in
that area, both from Rankin's specifically and in general; and
(iii) the risk of theft was clear in the circumstances.

Proximity

On the issue of proximity, the court recalled that this
criterion would be met if Rankin's "should have had minors
like J.J. in mind" when security measures were considered at
the garage. It concluded that Rankin's should have had J.J. in
mind as it had "care and control of many vehicles for
commercial purposes, and with that comes the responsibility of
securing them against minors, in whose hands they are potentially
dangerous." The court added that to secure the vehicles was
not an onerous task: Rankin's simply had to ensure the cars
were locked and the keys stored.7

No policy concerns

The court rejected any argument relating to broad policy
concerns and noted this was not a homeowner accidentally leaving
keys in an unlocked car, but rather a business that was "an
inviting target for theft and joyriding, especially by
minors."8 Addressing the issue that wrongdoers
should be responsible for any damage they cause to themselves as a
result of their actions, the court recalled that the existence of a
duty of care is not dependent on the illegal or immoral conduct of
the plaintiff. Rather, the wrongdoing is taken into account in
determining the degree of contributory negligence.9

This case reminds business owners that they can be found to owe
a duty of care to the public, as well as to third parties, in
circumstances other than those covered under the Occupiers'
Liability Act. More importantly, the Court of Appeal's
decision in this case suggests courts will be more inclined to find
that such a duty of care exists if minors are involved, no matter
how reckless their activities and behaviour prior to the incident.
It is of note that according to the court's reasons,
Rankin's would likely have met its duty of care had it ensured
that cars were locked and the keys were stored. It is therefore of
paramount importance for businesses with potentially dangerous
goods on their premises not to overlook simple, cost-effective
security measures.

Footnotes

1 J.J. v. C.C., 2016 ONCA 718, para. 71.

2 2016 ONCA 718.

3 Para. 13

4 Para. 15

5 Paras. 28-29.

6 Para. 38.

7 Paras. 56-58.

8 Para. 68.

9 Paras. 70-72.

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